Farley v. Riordon, 72 Ala. 128

72 Ala. 128 | Ala. | 1882

SOMERYILLE, J.

Under the provisions of the present Code (1876), the Probate Courts of this State have no jurisdiction to try any controversy touching the right of exemption to real estate claimed as a homestead. This want of jurisdiction extends to all cases where the question is raised, whether the allotment has already been made and reported by commissioners, after they have made the selection and valuation, or whether the controversy arise on application made directly to the court under such circumstances as to authorize the appointment of commissioners to be dispensed with, as unnecessary to the ascertainment of the requisite facts. The language of the statute is, “ In no case shall the trial of the right of homestead be had before a judge of probate, or justice of the peace.” Code, § 2838. In all litigated cases, therefore, where such a contest is properly raised, the issue formed is required to be certified by the probate judge to the Circuit Court 'of the county, to be tried therein at the next term thereof; after which, the judgment of the Circuit Court shall be certified back to the Probate Court for further proceedings.” — Code, §§ 2841, 2838; Kelly v. Garrett, 67 Ala. 304; Baker v. Keith, at present term.

The Code prescribes the only manner in which such a contest can be originated in the Probate Court. This can be done by the personal representative of the decedent, or any person in adverse interest, and must be by the filing of written exceptions to the allowance of the cla’m, or to the allotment of the homestead, as the case may be. — Code, § 2841. The time is also prescribed, within which these exceptions shall be filed and the contest thus initiated. When the claim is made through the appointment of sworn commissioners, it becomes their duty to make the selection and valuation, and report the same to the Probate Court within sixty days after their appointment; and the exceptions are required to be filed “ within thirty days after the expiration of said sixty days.” — Code, § 2841; Acts 1876-7, § 24, p. 42. This method of contest is made applicable to all cases, “ when homestead or exemption is claimed by the widow, or guardian of the minors” (Code, § 2841); and a natural and reasonable construction of the statute is, where no report of commissioners is required, the facts being all presented by the pleadings, the administrator is allowed thirty days within which to file his exceptions to the allowance of the claim made in the petition. The clause having reference to the “ sixty days,” seems to have no field for operation, except in those cases where commissioners are appointed, and it becomes their duty to make a report.

The petition of the appellee, claiming and selecting her exemption in a right of homestead as widow of the decedent, was filed in November, 1878, and is fully shown by the record to have been brought at once to the attention of the appellant, as administrator. No exceptions were filed by the contestant, until March, 1880, considerably more than a year after the petition was filed. We are of opinion, that they were properly ordered to be stricken from the files by the Circuit Court, under these circumstances. The Probate Court had no power to authorize the issue to be made up after the lapse of the period of time fixed by statute. It is a question of jurisdiction, and not of mere pleading. The filing of the exceptions was a condition precedent to the exercise of the jurisdiction, and without it no issue could be formed, or contest raised by the appellant; unless, perhaps, by demurrer, in certain cases not necessary to be considered.

The difficulty under consideration is not obviated by the continuance of the appellee’s petition, and proceedings thereunder. The order of continuance, though made at the request of both parties, did not operate as an extension of the time allowed for filing the exceptions. It was made only four days after the petition was filed, and there remained ample time within which the issue required by statute could have been formed. The recital by the probate judge, in an order made more than a year after-wards, to the effect that the continuance was made “without prejudice,” does not change its legal effect, in the absence of any evidence of an express agreement of counsel touching the question.—Collier v. Falk, 66 Ala. 223.

The action of the Circuit Court is without eiror, and its judgment is affirmed.